posted at 10:10 am on September 23, 2010 by Ed Morrissey

Jeff Sessions is ringing the alarm bells on Judiciary Committee hearings set to take place today for five Barack Obama nominees to the federal bench. The Senate, which has few days left on its pre-midterms legislative calendar, wants to quietly move these five picks to floor votes while Republicans will still have difficulty blocking their confirmations. In at least two of the cases, and perhaps all five, people may want a better look at these appointments, which one can see here and now, as the hearing is already underway for a whole slate of nominations.

Sessions’ office released the following criticisms of the five appointments he opposes:

Robert Chatigny (Second Circuit)

As a federal district court judge in Connecticut, Chatigny did everything in his power to prevent the execution of confessed serial killer and rapist Michael Ross (the “Roadside Strangler”). Chatigny even claimed that Ross’ “sexual sadism” was a “mitigating factor” that made him less culpable for his crimes. Chatigny also has never given more than the minimum sentence in every child porn case over which he has presided, and found Megan’s Law to be unconstitutional (overruled unanimously by the U.S. Supreme Court).

Serial killer Michael Ross was convicted of the kidnap, rape, and murder of six Connecticut women ages 15 to 25. After granting two stays of execution, which were both reversed by appellate courts, Chatigny bullied Ross’ lawyer into filing for an additional stay despite the fact that, after almost 20 years on death row, the murderer didn’t want to appeal anymore. Chatigny asserted that the murderer suffered from death row syndrome, was not competent to waive further appeals, called him “the least culpable person on death row,” and argued that he “never should have been convicted” because his sexual sadism was a mitigating factor.

After the case concluded, prosecutors discovered that Judge Chatigny previously had been involved in the case as a private attorney, but failed to disclose it. His actions resulted in seven state prosecutors filing an ethics complaint against him and a Connecticut congressman calling for his impeachment.

Chatigny also has a long record of “downward departures” where has given a lighter sentence than the minimum recommended by the federal Sentencing Guidelines. For example, in the 12 child pornography cases he handled as a judge, he issued a sentence less than the minimum eight times and issued the minimum under the guidelines the other four times. He never once issued more than the minimum sentence in a child porn case.

He also struck down part of Connecticut’s Megan’s Law, requiring the registration of sex offenders, only to be reversed by a unanimous U.S. Supreme Court.

Goodwin Liu (Ninth Circuit)

A Berkeley professor with no experience as a judge or practicing attorney, Liu believes that government healthcare and welfare are constitutional rights, and that foreign law should be used in American courts.

He has written that “expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit” are positive Constitutional rights.

He believes that it is acceptable for American judges to use foreign law in interpreting our Constitution, saying that “the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.”

He does not believe judges are bound to apply the Constitution according to its written meaning, but rather are free to “adapt” the Constitution “in light of changing needs, conditions, and understandings of our society.”

He believes the Constitution is a “living document,” is “indeterminate,” and subject to “socially situated modes of reasoning that appeal… to… culturally and historically contingent meanings.”

Edward Chen (Northern District of California)

A former staff attorney for the ACLU, Chen has been involved in many controversial causes and has made numerous inappropriate statements while sitting as federal magistrate judge. For instance, Chen said he did not feel patriotic pride when hearing “America the Beautiful,” but rather “ambivalence and cynicism.”

For 16 years, Chen worked as a Staff Attorney for the ACLU. During this time, he made several controversial statements and took positions in litigation that raise questions regarding whether he will faithfully and impartially apply the law. For example, he strongly opposed English-only and anti-affirmative action proposals and opposed injunctions against gang-related activity in residential neighborhoods and private-sector drug testing.

During a speech to the liberal American Constitution Society, Chen said that he finds “most rewarding… [c]ontributing to the development of the law via published opinion, especially if it comports with [his] view of justice.”

He echoed President Obama’s infamous empathy standard and argued that “judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experiences.”

Speaking about the 9/11 terrorist attacks, he said that he “had a sickening feeling in [his] stomach about what might happen to race relations and religious tolerance on our own soil… [O]ne has to wonder whether the seemingly irresistible forces of racism, nativism and scapegoating which has recurred so often in our history can be effectively restrained.”

He characterized as “institutionalized racism” the “federalization of state crimes” and the “[c]riminalization of immigration laws,” and he suggested that the slow response to Hurricane Katrina was due to racism.

Louis Butler (Western District of Wisconsin)

Louis Butler is such a judicial activist that Wisconsin voters twice rejected his candidacy for a seat on the state’s supreme court, yet President Obama insists on ignoring their expressed will and imposing Butler on the people of Wisconsin by nominating and now re-nominating him to the federal district court.

While on the Wisconsin Supreme Court, Butler was notoriously activist, repeatedly disregarding the policy decisions of the legislature and binding precedent, and instead inserting his own policy preferences.

In one case, he held that a manufacturer could be held liable for injuries from a product that, as the dissent explained it, the manufacturer “may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

As a practitioner, he earned—and publicly embraced—the nickname “Loophole Louie,” for winning reversals of his clients’ criminal convictions.

Jack McConnell, (District of Rhode Island)

Jack McConnell is a personal injury attorney who has demonstrated hostility against business and whose pattern of making large campaign donations to State Attorneys General who grant him lucrative contingency-fee contracts raises troubling ethical questions.

McConnell is a pioneer of the controversial practice of private attorneys representing State Attorneys General on contingency-fee contracts. At the same time, he has taken the unseemly step of contributing substantial amounts of money to political campaigns of the very Attorneys General awarding them, raising serious questions of pay-to-play.

After McConnell’s questionable theory of liability against lead paint manufacturers was unanimously rejected by the Rhode Island Supreme Court, he publicly attacked the decision as letting “wrongdoers off the hook,” revealing a preference for outcome-driven judicial decisions.

The United States Chamber of Commerce, which historically has never taken a position on a nominee to the District Court, has publicly opposed this nomination, citing McConnell’s “actions during his career as a personal injury lawyer and past statements [that] demonstrate his disregard for the rule of law, an activist judicial philosophy and obvious bias against businesses.”

I’ve written about Liu once before, and Allahpundit has written about Chatigny. Chen and McConnell don’t exactly seem to be my cup of tea, but I don’t think being a jerk is necessarily a bar to being on the bench. (Litigators may feel differently, of course.) The arguments against their appointments seem more a matter of taste than competence or corruption, and in that context, a President should be entitled to his bench appointments; that’s one of the perks of winning the election, and one of the reasons why elections matter.

In the case of Butler, though, one has to wonder why Obama went out on a limb to appoint a jurist who got rejected twice by Wisconsin voters. Democrats are already losing Wisconsin in this midterm cycle, thanks to Democratic arrogance in the Obama term. I don’t begrudge him the Loophole Louis monicker, since defense attorneys are supposed to represent their clients as fully as possible, but the other points in this memo should be aired widely, especially Butler’s views on gun control, which will run into direct conflict with McDonald and Heller. But beyond that, someone should ask the White House why they couldn’t find someone other than a twice-rejected retread for this post.

If readers find these appointments as objectionable as Sessions does, then they should follow the first link and start calling Senate offices immediately to express their opposition to them.

I have written before about John “Jack” McConnell, Jr., a major Democratic Party campaign donor who had been nominated by Sheldon Whitehouse (D-RI) to an open seat on the U.S. District Court in Rhode Island.

In addition to questions surrounding the propriety of nominating someone who had donated several hundred thousand dollars to Democrats — including many in the Senate who would vote on his confirmation — there were allegations that McConnell’s law firm had misrepresented certain fees it earned during lead paint litigation for which it was hired by then Attorney General Sheldon Whitehouse. The Ocean State Policy Research Institute, a conservative think tank, had served a public records request seeking information on the fee arrangement, but was rebuffed by McConnell’s law firm and the state.

McConnell’s name was left off the list of judicial nominees set for a floor vote over the summer, after Republican objections, which meant McConnell’s nomination had to go back to the Judiciary Committee. The nomination is coming up for committee vote today, but Republicans have indicated they still will not allow the nomination to get to the floor. Lindsay Graham was the only Republican to vote for McConnell the first time McConnell came up for a Judiciary Comittee vote.

Open, honest government! Be sure to read all of William’s post and the links to his earlier posts on McConnell.

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Hillsdale doesn’t have a law school.
Jimbo3 on September 23, 2010 at 11:12 AM

But they teach the Constitution there, as opposed to Princeton.

Akzed on September 23, 2010 at 11:22 AM

(sigh). This is why the adage that “the most obnoxious undergrad students are liberal and the most obnoxious law students are conservative” is so true. Practically since birth conservatives are told that they and only they interpret the Constitution according to its “written meaning”, as its meant to be understood. Sounds so simple, right? 1L for many of them as a shock, as they learn that textualism and originalism are as flawed (if not more flawed) than any other modality of constitutional analysis.

And Thomas is simply a well-connected Black guy who harassed underlings and likes to have sex with white women. I have no problem with what happened to Thomas either.

Jimbo3 on September 23, 2010 at 11:02 AM

What ticks you off more? That Thomas is married to a white woman, or that Thomas is a black conservative? Both perhaps???

To be clearer, I have no problem with the scrutiny that he got because of the Anita Hill thing just like I’m sure you have no problem with the scrunity Obama’s nominees got this year.

Jimbo3 on September 23, 2010 at 11:27 AM

Scrutiny? What scrutiny? I think these nominees were treated decently, with respect, and there was no malice. Some tough questions, but they didn’t bring the nominees, or their spouses to tears. Now…want to think that one over again, or live in your tiny bubble of ignorance?

Since the only white woman he’s had sex with is his wife, then do you favor inter-racial marriages ONLY if they don’t have sex?

Is it the inter-racial sex that gets you all hot and bothered, or is the marriage?

Religious_Zealot on September 23, 2010 at 11:32 AM

How do you know that his wife is the only white woman he had sex with? He was previously divorced:

Near the end of his sophomore year, he met Kathy Grace Ambush. His friend Jenkins had met Kathy and her twin sister, who came from the family of a Worcester dental technician. They went to a nearby Catholic women’s college, but roomed at home. Jenkins eventually introduced Clarence to Kathy. Since he couldn’t afford to go home on holidays, Thomas spent them with Kathy’s family. His friends remember him with no other girl. In June 1971, on the day following Holy Cross graduation, they were married in Worcester. In 1973, Clarence and Kathy had a son, whom they gave the Muslim name, Jamal.

1L for many of them as a shock, as they learn that textualism and originalism are as flawed (if not more flawed) than any other modality of constitutional analysis.

crr6 on September 23, 2010 at 11:33 AM

Really? Ho so?

darwin on September 23, 2010 at 11:35 AM

We could get into a very long discussion about this. But for starters, w/originalism..
1) Any time you base your judgment off of the intent of the founders, you need to figure out what their intent was when they wrote the document. That’s very, very difficult to do since they died centuries ago. Much of the time you’re going to rely on secondary sources, or your own gut feeling. Turns out, your own gut feeling tends to align with your own political preferences. That’s as subjective as any “liberal” mode of interpretation.
2) There’s a whole (very persuasive) textualist critique of originalism that wonders why we should even care what the FF’s intent was anyway? Law is a public act. Why should we care about the secret intent of the person who wrote it? What should matter is the meaning of the words to the public for which they were written for. E.g., Imagine that we discover a journal from Madison that reveals he secretly wanted “commerce” in the ICC clause to mean “the buying and selling of bananas.” That doesn’t mean we should interpret it that way. It should still mean what it mean to the public, to the citizens for whom it was written.
I could go on…

In order for us to fully understand your opposition to the scrutiny these Democratic/liberal judicial nominees, we need to fully understand why you cited Thomas’ sex life with a WHITE woman as reason you supported the hell he went through.

You make some good points, and there are some sections that aren’t cut and dry … but for the most part I think the argument is made simply to change it’s meaning. The majority of the Constitution was intentionally written to be simple and easily understood. To say it requires “interpretation” is an excuse to twist the meaning of such clear statements. Case in point, the 1st Amendment. A simple, clearer statement cannot be written. Yet, at the turn of the 20th century there suddenly appears to have been mass confusion because suddenly no one understood what it meant anymore.

As it stands, one has to ask if the founders would have created a document that would enable the federal government to become as powerful and as tyrannical as the government they had just fought a war to separate themselves from. Logic dictates no.

Anyway, you’re right … this could develop into a very long discussion that probably shouldn’t be carried out here. I appreciate your response.

We could get into a very long discussion about this. But for starters, w/originalism..
1) Any time you base your judgment off of the intent of the founders, you need to figure out what their intent was when they wrote the document. That’s very, very difficult to do since they died centuries ago. Much of the time you’re going to rely on secondary sources, or your own gut feeling. Turns out, your own gut feeling tends to align with your own political preferences. That’s as subjective as any “liberal” mode of interpretation.

Not true. Their writings and other contemporary writings show pretty clearly, for the vast majority of issues, what their intent was.

2) There’s a whole (very persuasive) textualist critique of originalism that wonders why we should even care what the FF’s intent was anyway? Law is a public act. Why should we care about the secret intent of the person who wrote it? What should matter is the meaning of the words to the public for which they were written for. E.g., Imagine that we discover a journal from Madison that reveals he secretly wanted “commerce” in the ICC clause to mean “the buying and selling of bananas.” That doesn’t mean we should interpret it that way. It should still mean what it mean to the public, to the citizens for whom it was written.
I could go on…

Persuasive to you, perhaps, but that is because it confirms your pre-existing beliefs. Intent is always used in statutory interpretation when the language is ambiguous. Same with contracts. Only with the constitution do people claim that a judge can simply decide for himself what he believes something to mean – whether or not his new meannig has any relation to the actual words and/or intent.

By your logic, the constitution has no actual meaning, only the meaning the current majority of justices give it. Because if it is to be interpreted only according to “present societies” whims, then precedent also should have no meannig to teh interpretation – as that was a different societies take on it adn those judges may all be dead. So who cares what they thought.

Why shoud dead judge’s interpretations of the document have any more control than the dead drafters of the document?

And that interpretation means there is no rule of law, only mob rule. the majority can do what it wants to teh minority because the constitution itself has no meaning aside from what the majority says it says.

Living constitution “scholars” use very circular logic. they always have.

They can’t snap their fingers and get someone tenure. It’s a whole lot easier when it’s a boss-subordinate relationship

Jimbo3 on September 23, 2010 at 11:56 AM

I didn’t assume they could. But law professors would never want anything from a Supreme Court Justice? That power is worth nothing to a law professor?

Your whole argument is that she was possibly attracted to the power, so much that she kept following him even after he allegedly sexually harassed her and that suddenly, once he was about to attain the highest position a judge ever could, he’s useless to her?

If what was discussed above about these five nominees is true, four of them seem to be out of the mainstream left and go to extreme left. McConnell appears to be a crook. That’s why they should be vetted.

I just wish both sides would see nominees for what they are and not give them a partisan pass. It also appears that Obama loves to select in-your-face nominees. There is no humility in that man.

crr6 on September 23, 2010 at 11:47 AM
I was hoping he’d explain, but I guess not.

Esthier on September 23, 2010 at 11:57 AM

–I think I’m about to be banned. I bring it up because I always thought it was funny that conservatives–especially Southern conservatives–were supporting a guy whose personal behavior they disapproved of. If you go back and look at polls on racial attitudes in the 1980s, most older people–and especially conservatives, who tended to be Southern conservtives–disapproved of intermarriage and inter racial dating. I tried to link to a poll but I can’t for some reason.

Why would you if you didn’t mean anything racist by it? They’re not ban-happy here.

I bring it up because I always thought it was funny that conservatives–especially Southern conservatives–were supporting a guy whose personal behavior they disapproved of. If you go back and look at polls on racial attitudes in the 1980s, most older people–and especially conservatives, who tended to be Southern conservatives–disapproved of intermarriage and inter racial dating. I tried to link to a poll but I can’t for some reason.

Jimbo3 on September 23, 2010 at 12:13 PM

I think you’re proving in this thread that ideology trumps personal actions. Liberals support Gore even though they disapprove of his large house and jet traveling. They disapprove of Bush even though he was remarkably green in his personal life. Liberals even ignored Clinton’s obvious sexual harassment and offered to get on their knees in Monica’s place just to keep abortion legal or something.

Besides, Jim, you know that even if conservatives were thinking that way then, very few of any political persuasion think that way now, so you should understand that people would read your comment in a very odd light.

Besides, Jim, you know that even if conservatives were thinking that way then, very few of any political persuasion think that way now, so you should understand that people would read your comment in a very odd light.

Esthier on September 23, 2010 at 12:22 PM

(FYI–My browser is behaving weirdly today but it looks like it’s a general problem, not tied to this site).

I understand. But what do you really think the GOP would have done two years ago if Obama was married to a white woman? Not bring it up explicitly on the national scene, but what do you think might have occurred in parts of the South among older voters?

yes, but the way he was treated was what constitutes a “borking”. The 2 obama nominees were treated respectfully, so an claimed comparison is utter nonsense.

Monkeytoe on September 23, 2010 at 12:00 PM

Really? Opposition groups had about a two-three month period in all these cases to dig through past speeches and articles. And it’s not like the GOP didn’t call some Obama nominees names:

“…Senator Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, practically called her a liar in one of the only relatively heated exchanges of the day. Sessions disputed Kagan’s account of why she briefly banned military recruiters from Harvard Law School’s resources office when she was dean. Kagan argued that she was merely trying to reconcile the school’s nondiscrimination policy with the Pentagon’s “Don’t ask, don’t tell” policy, but Sessions was having none of it. “I’m just a little taken aback by the tone of your remarks, because it’s unconnected to reality,” Sessions said. “I know what happened at Harvard. I know you were an outspoken leader against the military policy. I know you acted without legal authority to reverse Harvard’s policy and deny those military recruiters equal access to campus until you were threatened by the United States government of loss of federal funds. This is what happened.”

(FYI–My browser is behaving weirdly today but it looks like it’s a general problem, not tied to this site).

Maybe you need an update?

I understand. But what do you really think the GOP would have done two years ago if Obama was married to a white woman? Not bring it up explicitly on the national scene, but what do you think might have occurred in parts of the South among older voters?

Jimbo3 on September 23, 2010 at 12:27 PM

Racists weren’t going to vote for him regardless, neither were actual Republicans. The campaign on race would have happened in the primaries, considering Hillary and Obama were nearly identical in their policies.

I sincerely don’t believe Republicans would have made an issue out of it. It has far more negatives than positives. Even assuming the Republicans who would have done that are racist to the bone, even they would have been able to see that, especially when an ad that merely showed two white women, completely unconnected to Obama but the two biggest empty stars in the nation, was enough for endless charges of racism (even though the blatantly ageist ads against McCain were never similarly called out).

After recent comments made by Clinton, Reid, and even Biden, towards Obama, and his being black….what’s the point of bringing up what older people in the south were thinking in 1980?

I believe on both sides, and all sides, there is still racism out there, unfortunately. But to judge the GOP now, by the alleged thinking of 30 years ago, is absurd.

I live in the south, and see interracial relationships all the time. I’m white. My daughters white. And until her boyfriend moved away, she was dating a young black man. He was good to her, and they cared about each other. That’s all that mattered to me.

But what any of this has to do with judicial appointments, is beyond me.

I sincerely don’t believe Republicans would have made an issue out of it. It has far more negatives than positives. Even assuming the Republicans who would have done that are racist to the bone, even they would have been able to see that, especially when an ad that merely showed two white women, completely unconnected to Obama but the two biggest empty stars in the nation, was enough for endless charges of racism (even though the blatantly ageist ads against McCain were never similarly called out).

Esthier on September 23, 2010 at 12:41 PM

–I dunno. I think the GOP would have tried to drive a wedge into a few more percent of the older white Dem-leaning voters in the South with it, but under the radar screen.

McCain’s age, I do think though, was a valid issue to raise. There’s some reasonable concern about the stamina of someone in their late 60s and 70s in a job as stressful and all consuming as the POTUS. The question is simply how to portray the issue in a way that doesn’t alienate older voters.

I don’t know you, so I don’t know if you are actually racist or not, but your use of that phrase in that context points to either a racist viewpoint, or perhaps one that has been skewed by the constant drumbeat of racism coming from your side. Perhaps you’re unconsciously operating from the default position that all conservatives, especially Southern ones, are racists. Maybe that is more of a statement about the media coverage these last few years, and the fodder fed them by those who use the Race Card indiscriminately.

There will always be racists, sadly, but they come from all sides, all political persuasions, all races, religions, colors, nationalities, and so forth. No one group has a monopoly on racism, but one political party seems to constantly use race, gender, sexual preference, religion, and especially of late, socio-economic class, to divide people and encourage animosity in order to forward their political goals, and it isn’t the GOP.

I apologize for calling you racist without knowing you, but as it is the reflex response of preference for so many Democrats, I’m not all that contrite.

Live by the sword; die by the sword as the saying goes; and a partridge in a pear tree, or something.

Perhaps you’re unconsciously operating from the default position that all conservatives, especially Southern ones, are racists. Maybe that is more of a statement about the media coverage these last few years, and the fodder fed them by those who use the Race Card indiscriminately.

There will always be racists, sadly, but they come from all sides, all political persuasions, all races, religions, colors, nationalities, and so forth. No one group has a monopoly on racism, but one political party seems to constantly use race, gender, sexual preference, religion, and especially of late, socio-economic class, to divide people and encourage animosity in order to forward their political goals, and it isn’t the GOP.

I apologize for calling you racist without knowing you, but as it is the reflex response of preference for so many Democrats, I’m not all that contrite.

Live by the sword; die by the sword as the saying goes; and a partridge in a pear tree, or something.

Regards,

hillbillyjim on September 23, 2010 at 1:24 PM

Hillbillyjim, I do believe that most–if not almost all–people in the South today are not racist. But that wasn’t the case 25-30 years ago from everything I’ve been able to determine. Do you disagree that there’s been a change in the last 25-30 years, or am I wrong?

Your arguments on the “borking” of kagan are pathetic, as is your defense of your racist remarks.

If you really believe the tripe you spill here, I feel sorry for you. And, I actually really do believe you are a racist. There was absolutely no other reason for that remark in that context (or really, any context). You are a sad, sad individual.

If you think making a statement about Kagan’s past remarks is “borking” you are an idiot. Either you don’t understand what we are talking about, or you are lying. Having dealt with your comments in the past, I’m pretty sure it’s the latter. I think you know that you are absolutely lying, but you don’t care because you are so blinded by your ideology.

And yes, you are a racist. There is no denial of it based on your comment.

Typical witch hunt by Republicans? Is that where the word “bork” came from?

Esthier on September 23, 2010 at 10:51 AM

The irony, of course, is that Sessions was originally not a Senator, but a judicial nominee. If the Democrats hadn’t decided to break with a couple hundred years of tradition and started refusing to confirm the President’s nominations, he would be on the bench today, and not able to say a word about these nominees.

The Dems are hoist on their own petard. Live by the Borking, die by the Borking.

Bork came from an elistist U of C law professor who told everyone he wanted to overturn Roe v Wade. I was fine with what happened in that process.

And Thomas is simply a well-connected Black guy who harassed underlings and likes to have sex with white women. I have no problem with what happened to Thomas either.

Jimbo3 on September 23, 2010 at 11:02 AM

So you were fine with Kennedy smearing an honest man by saying he wanted to bring back segregated lunch counters? And you were fine with bogus sexual harassment charges without any evidence behind them?

Then you have nothing to complain about here. Honesty should compel you to admit that, in your view, judicial nominees should be blocked by the opposition party for any reason at all.

Once again, live by the Borking, die by the Borking.

Of course, that’s not really fair, since what was done to Bork and Thomas was far worse than any opposition by Republicans to any judicial appointment by a Democrat president.

Practically since birth conservatives are told that they and only they interpret the Constitution according to its “written meaning”, as its meant to be understood. Sounds so simple, right? 1L for many of them as a shock, as they learn that textualism and originalism are as flawed (if not more flawed) than any other modality of constitutional analysis.

crr6 on September 23, 2010 at 11:33 AM

That’s all a red herring. The problem has never been just disagreement about how to interpret the Constitution, but whether to be bound by what the Constitution actually says rather than inventing penumbras and emanations at will. All of which essentially inserts a judge’s own opinion into the Constitution, as if the judge was authorized to add to it.

So you were fine with Kennedy smearing an honest man by saying he wanted to bring back segregated lunch counters? And you were fine with bogus sexual harassment charges without any evidence behind them?

Then you have nothing to complain about here. Honesty should compel you to admit that, in your view, judicial nominees should be blocked by the opposition party for any reason at all.

Once again, live by the Borking, die by the Borking.

Of course, that’s not really fair, since what was done to Bork and Thomas was far worse than any opposition by Republicans to any judicial appointment by a Democrat president.

tom on September 23, 2010 at 1:46 PM

I have to disagree, Tom. Hill had several witnesses who said that she was upset about something. And Bork’s reliance on “original intent” would have meant that many new laws could have been overturned.

–I dunno. I think the GOP would have tried to drive a wedge into a few more percent of the older white Dem-leaning voters in the South with it, but under the radar screen.

Maybe, but again, if proven this would have lost them the election and many more, all to maybe convince a few racist to stay home (the same people who likely stayed home even though he’s married to a black woman).

McCain’s age, I do think though, was a valid issue to raise. There’s some reasonable concern about the stamina of someone in their late 60s and 70s in a job as stressful and all consuming as the POTUS. The question is simply how to portray the issue in a way that doesn’t alienate older voters.

Jimbo3 on September 23, 2010 at 1:05 PM

Age and vitality are one thing, whining that he doesn’t know how to use a computer (when in fact his aversion to computers was due to lasting damage from torture), is quite another.

Besides, someone’s age is relevant no matter the job. Doesn’t make it any less illegal to make an issue for hiring. Completely hypocritical for the Democrats to bring it up at all.

Hillbillyjim, I do believe that most–if not almost all–people in the South today are not racist. But that wasn’t the case 25-30 years ago from everything I’ve been able to determine. Do you disagree that there’s been a change in the last 25-30 years, or am I wrong?

Jimbo3 on September 23, 2010 at 1:34 PM

I disagree. You’d have to go much farther back than 25-30 years, but even then, such attitudes weren’t confined to the South, although they were enshrined in the Jim Crow laws here. To this day, I find more racism the further away I travel from here. Sure, there are pockets of racism that are pretty nasty in urban centers throughout the South, but that’s a function of poverty, drugs, crime, prison, gangs, etc., as in any big city most anywhere in the world.

I have been shocked by some of the most blatant racism I’ve ever seen in the Northeastern cities most people consider “cosmopolitan”, from whites, blacks, and others.

The South isn’t what you think it is, and hasn’t been for a long time from my limited experience. Most of us are too busy making a life to be bothered with such nonsense. We work, live, play, recreate, procreate, worship, exist side-by-side, and together, harmoniously — with the rare exception as is ever the case.

Besides, someone’s age is relevant no matter the job. Doesn’t make it any less illegal to make an issue for hiring. Completely hypocritical for the Democrats to bring it up at all.

Esthier on September 23, 2010 at 2:20 PM

-It’s illegal for an employer to use age as the motivating factor. It’s not illegal for voters to use it, though.

And McCain has problems doing things like combing his hair, typing for an extended period or tying his shoes. He relies on his wife to read emails. But there are voice recognition programs and other hardware that people can use if they have mobility problems.

-It’s illegal for an employer to use age as the motivating factor. It’s not illegal for voters to use it, though.

It’s not illegal for voters to consider race either. But when a party works to ensure that employees can’t refuse to hire based on age, it’s smacks of hypocrisy for them to push the issue.

And McCain has problems doing things like combing his hair, typing for an extended period or tying his shoes. He relies on his wife to read emails. But there are voice recognition programs and other hardware that people can use if they have mobility problems.

Jimbo3 on September 23, 2010 at 2:33 PM

Yes, he has problems raising his arms up that high, because of torture. It didn’t stop him from using the Internet.

I’m only 28, so my perspective is obviously limited, but I’d have to agree. I wasn’t even aware of race issues as a kid. I went to a private school, but it’s a really small one in a strip center in a less than nice part of Houston (we had bars on the windows), and though blacks were still a minority at the school, the two in my class (two out of 7 – the classes got much smaller by 5th grade) were the popular kids.

The first racist I met was a friend’s sister, and even that was nothing more than a phase she went through after being raped by a black guy.

Racism is alive and well in the DEEP SOUTH , just the face has changed .
No longer do they wear White Hoods , they parade behind various banners that are associations comprised entirely of Black people .
Google ALVIN HOLMES or HANK SANDERS for a good example

It just doesn’t come up in day to day life here. Sure, some punk will spray-paint something stupid on a wall in the middle of the night every few years in some town somewhere within a hundred-mile radius and the TV crews will get all jacked up. The folks will be interviewed on-air and all will be in agreement that this is vile. The punk usually will eventually be found out and dealt with and that’s that.

The only time it comes up is when you turn on the TV, or read a paper or magazine and some race-baiting politician or professional leech will be calling everybody who doesn’t vote their way a racist. It’s tiresome, really.

Of course, those of us who are gluttons for punishment go on political blogs and comment. :>)

Persuasive to you, perhaps, but that is because it confirms your pre-existing beliefs.

Kind of, I guess. I’m not a textualist. I guess it confirms my pre-existing belief in the sense that I believe originalism isn’t some sort of flawless, magical method of interpretation that can never be wrong.

Intent is always used in statutory interpretation when the language is ambiguous. Same with contracts.

You need to be more specific as to what you mean by “intent”….but in general it isn’t used much to interpret contracts, or to determine if a contract is formed. And judges hate using legislative history when interpreting statutes.

Contracts are formed not based upon the secret (internal) intent of the parties, but based upon their expressed intention. So if a reasonable person would believe that the party expressed assent based on their outward expression, there is a contract (even if one of the party didn’t intend to enter a contract).

As for contractual interpretation, judges always look to the clear meaning of the express terms first.

As for statutory interpretation….judges always look to the text itself first. They look to the legislative history only if other methods of interpretation fail, because legislative history is an awful, awful method of interpretation. I can’t remember the name of the case but there’s some SCOTUS case I read where the justice writing for the majority basically sh*ts all over legislative history for the entire opinion and talks about how awful it is. The reason is, (just like with originalism) it’s easy to cherry pick authority that agrees with your political viewpoint.

Only with the constitution do people claim that a judge can simply decide for himself what he believes something to mean – whether or not his new meannig has any relation to the actual words and/or intent.

I don’t think anyone claims that.

By your logic, the constitution has no actual meaning, only the meaning the current majority of justices give it.

No, by your logic the Constitution has no actual meaning, just the meaning of whatever historical bullsh*t the current justices decide to cherry pick.

Because if it is to be interpreted only according to “present societies” whims, then precedent also should have no meannig to teh interpretation – as that was a different societies take on it adn those judges may all be dead. So who cares what they thought.

I believe textualists don’t believe the Constitution should be interpreted based on its plain meaning to “current society”, they believe it should be interpreted based on its public meaning when it was adopted. So it is static to a certain extent.

And that interpretation means there is no rule of law, only mob rule. the majority can do what it wants to teh minority because the constitution itself has no meaning aside from what the majority says it says.

appears incompetent for the federal bench, incopetent if but for the sole reason that he “interprets” or imagines Constitutional rights where none exist as to those he has declared exist but don’t (not in the Constitution, yet Liu “perceives” them to be there). Thus, sounds incompetent as to the job duties he’s being considered for.

Edward Chen (Northern District of California)

Ditto as to Liu’s limitations and liabilities, but with additional relationships that represent contradictions to the job he’s being considered for, if not outright hostility to Jurisprudence as an unbiased process (Judiciary as unbiased, as “judge” impartial to opinions on issues, Chen has abundantly displayed his impartiality if not his determination to be partial by default).

Both of these, also, as to what I just expressed is the disqualifying characteristic about Chen, preceding ^^.

——————-

While I AGREE that each President has the “option” or privilege of that Office to nominate as they chose, I DO NOT perceive the offensive, objectionable aspects to these individuals (all of them, nominated, in today’s hearings as to possible confirmation) to be a case of “choice” or simple differences of opinions.

It’s one thing to nominate qualified individuals who reflect one’s political perspectives, it’s another thing to nominate individuals who are unqualified due to incompetence to the Judiciary. All of the people listed here appear incompetent to the Judiciary — and I’d add, at any level of the Judiciary.

It’s one thing to nominate qualified individuals who reflect one’s political perspectives, it’s another thing to nominate individuals who are unqualified due to incompetence to the Judiciary. All of the people listed here appear incompetent to the Judiciary — and I’d add, at any level of the Judiciary.

Lourdes on September 24, 2010 at 8:24 AM

I also add that the list as described appear downright hostile to the Constitution. Should be an immediate disqualification to any position on the Judiciary, at any level.

I disagree. You’d have to go much farther back than 25-30 years, but even then, such attitudes weren’t confined to the South, although they were enshrined in the Jim Crow laws here. To this day, I find more racism the further away I travel from here. Sure, there are pockets of racism that are pretty nasty in urban centers throughout the South, but that’s a function of poverty, drugs, crime, prison, gangs, etc., as in any big city most anywhere in the world.

I have been shocked by some of the most blatant racism I’ve ever seen in the Northeastern cities most people consider “cosmopolitan”, from whites, blacks, and others.

The South isn’t what you think it is, and hasn’t been for a long time from my limited experience. Most of us are too busy making a life to be bothered with such nonsense. We work, live, play, recreate, procreate, worship, exist side-by-side, and together, harmoniously — with the rare exception as is ever the case.

hillbillyjim on September 23, 2010 at 2:27 PM

Hillbillyjim, thanks for talking and giving your perspective. I remember George Wallace running for President twice (I think late 60s and then early 70s when he got shot). Didn’t he receive a significant number of Southern votes? And I also remember Lee Atwater of the Republican party putting in place a successful “Southern Strategy” in the early 1980s that was based in part on subtle (in most cases) race issues. I also remember all the Civil Rights issues of the 60s.

I guess I’m wondering whether it was “much further back” than 25-30 years ago, because those were in the 1960s, 1970s and early 1980s.

It’s one thing to nominate qualified individuals who reflect one’s political perspectives, it’s another thing to nominate individuals who are unqualified due to incompetence to the Judiciary. All of the people listed here appear incompetent to the Judiciary — and I’d add, at any level of the Judiciary.

Lourdes on September 24, 2010 at 8:24 AM

I see. Mind naming some “liberal” judges you believe would be qualified for the federal bench?

appears incompetent for the federal bench, incopetent if but for the sole reason that he “interprets” or imagines Constitutional rights where none exist as to those he has declared exist but don’t (not in the Constitution, yet Liu “perceives” them to be there).
Lourdes on September 24, 2010 at 8:24 AM

So it’s your position that the only rights you have are those specifically spelled out for you in the Bill of Rights? What a pathetic, servile existence.

Fortunately, the Founders included the 9th amendment in case peons like you thought you only had the rights which were specifically laid out in the Constitution.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Being a hillbilly and all, my perspective is from the viewpoint of the rural South. There are still places near Atlanta and Birmingham where racism is alive and well, and certainly were thriving hubs of hate in the ’60s.

In my experience, the closer to metropolitan areas you get, the more racism you will find, and that was the case in the ’70s as well. I was a but a child during the ’60s, so all I know about that aside from reading, film, TV, etc., is what my sister has told me over the years. (She’s still a hard-core liberal, btw).

As I pointed out before, the metropolitan areas across the nation, and the world for that matter, are in my mind the places where racism seems to still simmer at times. The cities were certainly aflame during the ’60s nationwide, and of course the Southern cities were atrocious in this regard before then.

There weren’t Jim Crow laws in place elsewhere in the nation for the most part, but the hate and bigotry was certainly a part of the landscape across the country.

In the rural South, blacks and whites have more or less been equally downtrodden since Reconstruction, and have been coexisting nicely for the most part since, the pockets of KKK activity notwithstanding. The South has certainly outpaced the Northeastern part of the country in moving past bigotry and racism in my experience. I don’t have much basis to judge the rural areas of the Northeast, so this does not apply to them necessarily, but as far as the big cities go, the contrast is stark, and the negative image of what is portrayed in the various media.

I still contend that the South, for the most part, is not what you think it is. (George Wallace’s success is a complex story that has a lot to do with racism, but much more besides that.)

Wikipedia is not the best place to educate yourself on these matters.

Apologies for not getting back to the thread sooner. Obligations and all…

I understand. But what do you really think the GOP would have done two years ago if Obama was married to a white woman? Not bring it up explicitly on the national scene, but what do you think might have occurred in parts of the South among older voters?

Jimbo3 on September 23, 2010 at 12:27 PM

Uh oh, looks like Jimbo3 got caught being a bigot, and instead of admitting it and apologizing, he doubles down and calls us bigots. Surely he didn’t mean to do this. Or, perhaps, he’s exhibited a pattern here. Does anyone remember this little gem?

What are the odds that most people who voluntarily live in Alaska can really be all that smart given the crappy weather nine months of the year?

Jimbo3 on August 4, 2010 at 3:08 PM

Sure enough, Jimbo3 hates people from Alaska as well, as evidenced here by his bigotry toward anyone who chooses to freely live in a place he thinks is too cold. He actually thinks they’re stupid for making such free choices.

Now, I’m sure we can all forgive and forget (oops) when someone displays such ignorance and bigotry once, even if they refuse to own up to it the first time. But now, we have a CLEAR pattern established in the bigot’s OWN WORDS. Are we to just sit back an put up with it? I think not. The ban hammer should fall on this idiotic little creep once and for all.

Now, I’m sure we can all forgive and forget (oops) when someone displays such ignorance and bigotry once, even if they refuse to own up to it the first time. But now, we have a CLEAR pattern established in the bigot’s OWN WORDS. Are we to just sit back an put up with it? I think not. The ban hammer should fall on this idiotic little creep once and for all.

runawayyyy on September 24, 2010 at 3:28 PM

Those quick to assume bigotry in others shouldn’t be upset when others are quick to assume bigotry in them.

And I also remember Lee Atwater of the Republican party putting in place a successful “Southern Strategy” in the early 1980s that was based in part on subtle (in most cases) race issues.

Jimbo3 on September 24, 2010 at 10:24 AM

Everything I’ve read places that in the 60s and 70s. I wasn’t alive for either, so I’m not speaking from authority, but your time line might be off.

Considering all of this (the conversation) started over Thomas, and he was appointed by a Republican president in 1991, it seems reasonable to conclude that racial problems had cooled enough by then that Republicans weren’t against this pick and likely saw his race as a plus, rather than a minus. That kind of cooling would seem to take some time. Ten years sounds like an underestimate even.

Maybe you see things differently because you remember how it was before and can’t separate them out, whereas I have never lived in a time when it was even socially acceptable to be a bigot.

Everything I’ve read places that (the Southern thing – something’s keeping this comment in moderation, not sure what) in the 60s and 70s. I wasn’t alive for either, so I’m not speaking from authority, but your time line might be off.

Considering all of this (the conversation) started over Thomas, and he was appointed by a Republican president in 1991, it seems reasonable to conclude that those kinds of problems had cooled enough by then that Republicans weren’t against this pick and likely saw his race as a plus, rather than a minus. That kind of cooling would seem to take some time. Ten years sounds like an underestimate even.

Maybe you see things differently because you remember how it was before, whereas I have never lived in a time when it was even socially acceptable to be a bigot.

Those quick to assume bigotry in others shouldn’t be upset when others are quick to assume bigotry in them.

Esthier on September 24, 2010 at 3:35 PM

I’m not assuming anything. The evidence of Jimbo3′s bigotry has been here for all to see. I’m merely pointing out that this isn’t the first time it’s been displayed, and so blatantly at that. The difference this time is that it’s racial bigotry, and many people have been banned from this site for far less.

I’m not assuming anything. The evidence of Jimbo3′s bigotry has been here for all to see. I’m merely pointing out that this isn’t the first time it’s been displayed, and so blatantly at that. The difference this time is that it’s racial bigotry, and many people have been banned from this site for far less.

runawayyyy on September 24, 2010 at 3:54 PM

And many have been allowed to continue commenting after having written much worse. Intent matters. Even those who have intentionally made a racist comment (in a heated moment without thinking) but apologized have been given a second chance.

Also, I’m just not seeing his Alaska comment as prejudiced. It reads more like a joke than anything, and unless I’m thinking of someone else, I think he lives in Texas. Our weather isn’t anything to brag about either.

A bigot is a person obstinately or intolerantly devoted to his or her own opinions and prejudices, especially one exhibiting intolerance, irrationality, and animosity toward those of differing beliefs or genetics.

Just get the definition straight, runaway. Nothing I said suggested hatred, intolerance or anomosity [strong dislike] towards Alaskans or blacks. And, in any event, I don’t think Alaskans have different genes.

Or would you think that someone on this site who points out that blacks have abortions at a higher per capita rate than whites is by definition a bigot?

And many have been allowed to continue commenting after having written much worse. Intent matters. Even those who have intentionally made a racist comment (in a heated moment without thinking) but apologized have been given a second chance.

Also, I’m just not seeing his Alaska comment as prejudiced. It reads more like a joke than anything, and unless I’m thinking of someone else, I think he lives in Texas. Our weather isn’t anything to brag about either.

Esthier on September 24, 2010 at 3:59 PM

Agreed, but he didn’t apologize then and he hasn’t apologized this time. As for the tone of the original August Alaska comments, I can only suggest you go back and view the 3 PAGES of him defending his original bigotry. It was no joke and it wasn’t meant to be. In this case, as in all cases of blatant bigotry, context matters. You can’t tell me his comment wasn’t racist (my god, even crr6 called him out on it) and you can’t tell me it wasn’t intentional.

You may also note that I haven’t addressed the little bug a single time in my tirades on this thread. That is because I have no interest in anything he says. He degrades people based solely on where they live or what color skin they were born with. Such pieces of human filth are not worthy of your defense or even attention.

And they are certainly not worthy of being allowed to comment on this high quality forum.

Agreed, but he didn’t apologize then and he hasn’t apologized this time. As for the tone of the original August Alaska comments, I can only suggest you go back and view the 3 PAGES of him defending his original bigotry. It was no joke and it wasn’t meant to be. In this case, as in all cases of blatant bigotry, context matters.

I was in that thread but don’t remember what his reason was for insulting Alaskans like that, and I don’t know what thread that was, so I can’t look back to see if he explained himself, but that comment was still about Alaska’s climate, not really the people. The things he said of them would presumably also apply to Canadians, Russians and anyone else that far North.

I’m very slow to call someone a bigot, so I certainly wouldn’t personally do so because of a comment about climate.

You can’t tell me his comment wasn’t racist (my god, even crr6 called him out on it) and you can’t tell me it wasn’t intentional.

I can’t tell you much of anything. I didn’t understand the comment, and even with his explanation find it completely out of place, as it seems odd that he would mention something Republicans might have had a problem with (though obviously we didn’t) while explaining why he didn’t care that Thomas was borked. I would think, that only the things Jimbo was personally annoyed at should go in that comment, but I’ve never had a reason to believe he hates black people or thinks the races shouldn’t mix, so it doesn’t make sense to me as an admission of racism on his part either.

Again, I’m just really slow to accuse anyone of bigotry. It happens so much to us on such a regular basis that we of all people should understand the need for more information. I felt it was necessary that he explain himself, and since he has, I accept that he didn’t intend his comment as racist.

You seem to think he’s changing his story. If true, then it would show him to be apologetic about his original comment. If he meant for it to be taken the way it was, I imagine he would have defended the comment more forcefully instead of showing some understanding about how the quote had been perceived.

You may also note that I haven’t addressed the little bug a single time in my tirades on this thread. That is because I have no interest in anything he says. He degrades people based solely on where they live or what color skin they were born with. Such pieces of human filth are not worthy of your defense or even attention.

We’re talking about him. Clearly he has our attention. I’m defending him because I’ve found him to be fair on other threads even though I can’t remember a time we’ve agreed politically. I find that rare on the Internet and believe that’s worth defending.

Plus, the whole race thing is a sensitive subject for me. I got into it with The Race Card multiple times right before he was banned over his characterization of the people here. He wasn’t entirely wrong. There are certainly some racists here. But I felt that he was far too quick to read racism where none existed and that he broad brush painted far too much.

I didn’t think it was fair when he did it. I don’t think it’s fair when anyone does it. The whole, “you’re a racist” is so overused that it’s almost impossible to highlight real racism, so I don’t defend him just for his sake but because this is something I believe in personally.

I’m not saying you have to agree with me. I just want to talk about this a little more dispassionately.

And they are certainly not worthy of being allowed to comment on this high quality forum.

runawayyyy on September 24, 2010 at 4:20 PM

I love Hot Air and cannot keep myself away from it, but that’s a bit of hyperbole. It’s a blog. Sometimes it’s down right ridiculous here.

Here’s the difference: “X likes orange soda” vs. “X like orange soda like all the other shiftless Ys.”

There’s no reason for me to apologize for either of those two things.

As to your comments, it looks like at least one of them is bigoted by definition and the other comes close to advocating armed revolution:

…And no, I’m not suggesting that armed revolt is a good option, or even the only option, but depending on the same Americans who did this in the first place to fix it is as naive as expecting BO to be a Reagan conservative. Pretending otherwise is foolish, reality is what it is.

Saying all Alaskans are stupid for choosing to live in Alaska is certainly a form of prejudice.

1.
an unfavorable opinion or feeling formed beforehand or without knowledge, thought, or reason.
2.
any preconceived opinion or feeling, either favorable or unfavorable.

It might not meet the dictionary definition of bigotry (though some definitions do throw in prejudice as an explanation of the word), but that’s more of a semantic argument rather than one on the actual merits of the complaint.

Regardless, apologies aren’t only limited to bigoted remarks. When you say something that insults a large group of people, it’s polite to apologize – it’s polite to apologize if you’ve only insulted one person. Obviously you don’t have to, but then, you never have to.